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Seeking Texas Justice

It was 1988 when a soft-spoken but determined Huntington, Texas, woman began legal proceedings against the manufacturers of Agent Orange. Since then, her case has gathered more plaintiffs and could mushroom into one of the largest personal injury class-action suits in history. On March 6, Shirley Ivy et al. v. Diamond Shamrock Chemical Co. et al., though filed in Texas, will be heard in the Brooklyn courtroom of US District Judge Jack Weinstein. How the case has ended up in New York speaks volumes about the steady stream of injustice Vietnam vets and their families have waded through for 20 years.

The hurt is palpable when Shirley Ivy recounts her Agent Orange story. In 1987, she and her husband, Donald, were stunned to learn that he had cancer of the liver and pancreas. Old people's cancers, his doctor called them. Donald Ivy was 45.

A nonsmoker with no history of cancer on either side of his family, Donald Ivy attributed the diseases to his intense exposure to dioxin-laden Agent Orange while a Marine Corps captain in Vietnam. His doctor concurred. "I understand why they used Agent Orange to clear the jungles," Ivy remembers her husband saying. "But I really am very bitter that here I have sat for 17 years without knowing the consequences. Why did they not send out one little letter saying, 'Hey, dioxin is dangerous to your health'? That way we could at least have tried to protect ourselves."

Shirley Ivy's case is the second major class-action suit filed on behalf of Vietnam veterans. None of the vets represented in her case realized they were ill when the first suit was settled and dismissed in 1984. Ivy and her fellow plaintiffs reject the notion, argued strenuously by the chemical companies, that their claims fall under the auspices of the first settlement. Under what law, they wonder, can your claim be settled years before you even know there was a claim to make? How can you be forced to accept the decision of other people's lawyers when you had no legal counsel there to represent you?

As if that issue weren't problematic enough, the case was removed from Texas state court to New York federal court, ostensibly to consolidate it with other pending Agent Orange litigation. Just one slight hitch: there are no other cases pending. The courts in effect have acknowledged this by refusing to cite the case with which Shirley Ivy's suit is being combined. "It's just inconceivable how this could happen," said Ivy, perplexed by the turn of events that has taken her case out of Texas. "Our constitutional rights have been violated. Here we have 500,000 soldiers in the Persian Gulf fighting for our freedom—if they knew this could happen to them, I wonder how they'd feel, over there on that foreign soil? I know a lot of vets now who are not receiving the rights we fought for in Vietnam. It's a sad commentary."

Other Texas vets and their families, like Ivy, express sentiments ranging from frustration to chagrin. Don Braksick, a totally disabled vet who lives in Call and who served as a combat engineer during his two years in Vietnam, is a vocal supporter of the Ivy case: "We want our day in court. This Agent Orange business has gone on too damn long," said Braksick. His health deteriorating, he speaks with that urgency he and other Vietnam vets convey when they sense their days are numbered. "Too many studies and studies—how many millions of pages do you need? I've got boxes and boxes of information on the use of herbicides in Vietnam. What I've learned the government's doing is slamming the door shut on us."

R. J. Huckaby, chairman of the Standing Committee on Agent Orange for the Vietnam Veterans of America Texas State Council, believes the case has acquired special significance in light of the disappointing Agent Orange bill passed by Congress in January. "It hasn't helped us one iota," he said of the legislation. "It's a Band-Aid on a broken leg." A former Green Beret, Huckaby is fighting off bouts of extreme illness; a newly discovered abnormal lymph node means he must undergo surgery for the ninth time. His health problems began in Vietnam. "Both times I came out of the jungle I was covered with sores and blisters from the stuff [Agent Orange]," he said. "They used to send us to China Beach to wash off the chemical in the water—they thought soaking ourselves in salt water might lessen the pain from the sores."

Among the dozens of people Huckaby has contacted about the Ivy case is John Cook at the Texas Veterans Commission, which is affiliated directly with the office of Governor Ann Richards. Huckaby would like to see Richards take action on Ivy's behalf.

Shirley Ivy is also marshalling her forces: she has been conferring with vets and wives of deceased vets whose stories so resemble her own it seems eerie. She has contacted Dallas Congressman John Bryant in the hope that he and fellow Democratic Representative Jack Brooks, of Beaumont—two Texans on the House Judiciary Committee—will initiate hearings on the notorious "government contractor defense" that has permitted Agent Orange manufacturers to walk away from liability charges.

Ivy has written to Governor Richards, as well as to the Texas Attorney General, explaining that she believes her fundamental rights have been abrogated. She is urging Richards to file an amicus brief with Judge Weinstein insisting the case be brought back to Texas. "I've done just about everything except sit on the doorstep of Ann Richards," Ivy laughed. "And I'd do that, too, if I thought it would do any good."

Donald Ivy made one request of his wife before his death in 1988. "He said, 'Please promise me that you won't give up on this—that you'll see it to the end. When I'm gone, don't forget.' " The month he died, Shirley Ivy was talking to a lawyer about Agent Orange. She wouldn't think of quitting now.

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